dissenting.
Mr. McBride has total retirement benefits valued at $432,000, 68% of which are community property and the wife’s one-half thereof being $142,355.
There is ample, respectable, and well-reasoned authority for a method of interpreting Idaho statutes and rules of civil procedure in a manner which would prevent the wife from being deprived of that to which she is entitled, but for some reason the majority is not open to the analysis.
In Ramsey v. Ramsey, 96 Idaho 672, 535 P.2d 53 (1975) we held military retirement pay to be community property to the extent such benefits vested or accrued while the husband and wife were domiciled in a community property state.
In the summer of 1981, the U.S. Supreme Court decided McCarty v. McCarty, 453 U.S. 210, 101 S.Ct. 2728, 69 L.Ed.2d 589 (1981). McCarty held that, under federal law, military retirement payments could not be characterized as community property and considered in community property divisions upon divorce. Subsequent to McCarty, this Court “reluctantly” complied with the McCarty holding. Rice v. Rice, 103 Idaho 85, 645 P.2d 319 (1982).
The parties in the instant case entered into a property settlement agreement on October 31, 1982, in which Frances McBride was not to receive any interest in her husband’s military retirement benefits. This property agreement was subsequently “incorporated, merged and ordered” into a divorce decree. In deposition testimony, Mrs. McBride stated her frame of mind in agreeing to a property settlement agreement wherein she took no interest in her husband’s military retirement benefits:
It was my understanding at that time that I could not — the current court ruling and the current law stated that I could not try to get to a portion of his retirement as community property, and that was what I believed to be the case at that point in time____ I made a decision at that time that I couldn’t do anything else, the law wouldn’t let me.
On February 1, 1983, three months after Frances McBride signed the property settlement agreement, the Uniformed Services Former Spouses’ Protection Act (USFSPA), P.L. 97-252 (10 U.S.C. § 1408, enacted September 8, 1982), took effect. The USFSPA granted trial courts the discretion to include a division of military retirement benefits into final dissolution decrees, should applicable state law so allow. There is no doubt but that the USFSPA was enacted in response to McCarty; a portion of that Act reads:
*964Subject to the limitations of this section, a court may treat disposable retired or retainer pay payable to a member for pay periods beginning after June 25, 1981 [the date of the McCarty decision], either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court. 10 U.S.C. § 1408(c)(1).
Moreover, the legislative history available for the USFSPA shows that the act not only effectively did away with the McCarty decision, but also was intended to apply retroactively to protect those spouses of uniformed servicemen who were divorced during the twenty-month effective period of McCarty:
The purpose of this provision is to place the courts in the same position that they were in on June 26, 1981, the date of the McCarty decision, with respect to treatment of non-disability military retired or retainer pay. The provision is intended to remove the federal preemption found to exist by the United States Supreme Court and permit state and other courts of competent jurisdiction to apply pertinent state or other laws in determining whether military retired or retainer pay should be divisible. Nothing in this provision requires any division; it leaves that issue up to the court supplying community property, equitable distribution or other principles of marital property determination and distribution. This power is returned to the court retroactive to June 26, 1981. This retroactive application will at least afford individuals who were divorced (or had decrees modified) during the interim period between June 26, 1981 and the effective date of this legislation the opportunity to return to the courts to take advantage of this provision. Senate Report S.Rep. No. 502, 97th Congress, 2nd Session 16, reprinted in 1982 U.S.Code Cong. & Ad. News 1596,1611. (Emphasis added).
In short, the USFSPA as enacted solely to ameliorate the effects of the McCarty decision and to give back to the states the opportunity to decide the extent to which military retirement benefits could be considered in dissolution proceedings.
Idaho took the opportunity provided by the USFSPA to reinstate the Ramsey decision in Griggs v. Griggs, 107 Idaho 123, 686 P.2d 68 (1984). However, until this case, this Court has not yet had to address the issue of whether those spouses of Uniformed Services Employees obtaining dissolutions during the twenty-month effective period of the McCarty holding might reopen dissolution judgments to allow for consideration of military retirement benefits as community assets. We should hold that Mrs. McBride may have her dissolution decree modified and vacated to include an assessment of her husband’s military retirement benefits as community property in accordance with Griggs, supra. In so holding, we would be relying upon the obvious intent of Congress in passing the USFSPA and the fact that Mrs. McBride is, under the pertinent legislative history, a member of the class Congress sought to aid in allowing for retroactivity, but also upon the availability, in Idaho, of the procedural mechanism found in I.R.C.P. Rule 60(b), subsections (4) and (5).1
We could also look specifically to the analysis contained in cases decided in other states. In Flannagan v. Flannagan, 42 Wash.App. 214, 709 P.2d 1247 (1985), the court recognized the uniqueness of this situation in allowing for reexamination of final decrees in light of the USFSPA, despite the importance of the finality of judgments doctrine:
While we recognize the importance of finality of judgments, some situations justify an exception to this “doctrine of finality.” We hold that the circumstances presented in these cases are sufficiently extraordinary to permit the use of a C.R. 60(b)(11) [a procedural mechanism analogous to portions of I.R.C.P. Rule 60(b), and Federal Rule of Civil Proce*965dure 60.] motion to reexamine the final decrees in light of the USFSPA.
That court relied upon the well defined congressional intent “that the USFSPA apply retroactively to eliminate all effects of the McCarty decision____” (709 P.2d at 1250, quoting from In re Marriage of Konzen, 103 Wash.2d 470, 693 P.2d 97 (cert. denied, 473 U.S. 906, 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985) (emphasis added)). Additionally, the court relied heavily upon the “extraordinary circumstances” present in cases where reopening of a divorce decree was finalized during the twenty-month effective period of McCarty:
We agree that the McCarty period cases present “extraordinary circumstances.” Those circumstances are as follows; First, the clear congressional desire of removing all ill effects of McCarty, second, the alacrity with which the Congress moved in passing the USFSPA; third, the anomaly of allowing division of mili-, tary retirement pay before McCarty and after USFSPA, but not during the twenty-month period in between; and fourth, the limited number of decrees that were final and not appealed during that period. 709 P.2d at 1252.
The court emphasized that, in light of the extraordinary circumstances detailed, “[allowing reopening in these cases will not provide a springboard for attacks on other final judgments.” 709 P.2d at 1252.
I find the reasoning contained in Flannagan persuasive. That case correctly details the limited nature and effect of such a holding in the instant case. The uniqueness of the situation and paucity of possible claimants for reopening on such grounds in Idaho compels me to agree that allowing reopening in this case will not lead to the haphazard dismemberment of the doctrine of finality.
The trial court in the instant case emphasized Allison v. Allison, 690 S.W.2d 340 (Tex.App.1985); wherein the claimant was denied relief from a final judgment in the analogous situation where the claimant wished to reopen the judgment in light of the USFSPA. However, in so doing, the Allison court relied upon the fact that the Texas Rules of Civil Procedure did not provide for relief from final judgments in a manner similar to federal rule 60 (which is analogous to I.R.C.P. Rule 60(b)).
[T]he federal statute (USFSPA) ... cannot create the procedural mechanism to reopen final state court judgments. The law of the courts of this state does not have an equivalent of Federal Rule 60. 690 S.W.2d at 345. (See also discussion of Allison, supra, in Flannagan, supra, 709 P.2d at 1251).
Most states which have both a procedural mechanism for the reopening of final judgments and have considered the retroactive application of the USFSPA to final decrees have allowed reopening. Thorpe v. Thorpe, 123 Wis.2d 424, 367 N.W.2d 233 (Ct.App.1985); Koppenhaver v. Koppenhaver, 101 N.M. 105, 678 P.2d 1180 (Ct.App.1984); Castiglioni v. Castiglioni, 192 N.J.Super. 594, 471 A.2d 809 (1984); Edsall v. Superior Court, 143 Ariz. 240, 693 P.2d 895 (1984).
REOPENING UNDER I.R.C.P. 60(b)(4).
The majority relies upon Nieman v. Nieman, 105 Idaho 796, 673 P.2d 396 (1983), where we refused to allow a husband’s motion to reopen a divorce decree wherein his military retirement pay was treated as community property, in light of the then controlling McCarty decision, on grounds that “a judgment is not void and therefore not within the ambit of 60(b)(4) simply because it is erroneous, or is based upon precedent which is later deemed incorrect or unconstitutional.” 105 Idaho at 797, 673 P.2d at 396. In Nieman, we reemphasized this Court’s continued affirmation of the doctrine of finality of judgments. I view Nieman as distinguishable. In Nieman, we were not presented with clear Congressional intent in favor of retroactive application of a new rule of law; nor were we presented with a situation where only a few claimants might petition for reopening. In short, none of the “extraordinary circumstances” detailed in Flannagan (i.e. congressional intent, the speed with which congress enacted the USFSPA, the anomaly of not allowing for the division of military retirement pay in only a twenty-month *966period, and the limited number of decrees which became final during that twenty-month period were present). As already stated, the factual scenario of this case is so extraordinary and so compelling that, in this instance, it justifies a limited exception to the doctrine of finality of judgments.
The majority asserts that allowing reopening in the instant case will distort the doctrines of finality and res judicata. I disagree. I have already addressed the issue of finality, and beyond that, other courts have persuasively noted the inapplicability of the doctrine of res judicata in analogous cases.
For the doctrine of res judicata to apply, the issues must have been, or reasonably could have been, decided in the prior action, (citation omitted). [T]he issue of dividing the retirement payments could not have been decided because of McCarty. Res judicata does not prevent reopening the decrees, (citation omitted). Flannagan, 709 P.2d at 1253.
Flannagan also cited to Trahan v. Trahan, 682 S.W.2d 332 (Tex.App.1984), wherein it was held that res judicata did not apply when it would “subvert the intent of congress and the plain meaning of the act (USFSPA) which is to restore state law to what it was prior to the McCarty decision.” 682 S.W.2d at 337. Here, a significant community asset — the military retirement pension — was never before the court as a community asset. Res judicata simply does not apply.
Due to the compelling and limited nature of the instant case, I would allow for reopening under I.R.C.P. 60(b)(4) despite the absence of jurisdictional defect normally required for such relief. (See, Catledge v. Transport Tire Co., 107 Idaho 602, 691 P.2d 1217 (1984).)
REOPENING UNDER I.R.C.P. 60(b)(5)
I.R.C.P. 60(b)(5) allows for relief from judgment where “it is no longer equitable that the judgment have prospective application.”
The majority’s assertion that “the specific finding of the trial court that the agreement was fair and equitable could only have been based upon the testimony and assertion of the appellant wife at the hearing,” since Mr. McBride defaulted and did not appear, is irrelevant. Congress, by speedily enacting the USFSPA and providing for its retroactivity has indicated that the continued application of McCarty is not equitable in states where military retirement benefits are now considered community assets to the extent accrued during marriage while domiciled in a community property state. The voluntariness with which Mrs. McBride entered into the agreement, upon which Justice Shepard so heavily relies, cannot be deemed meaningful in the absence of knowledge of both the USFSPA and its retroactivity:
The question as to whether retroactive application of the act (USFSPA) could produce substantial inequitable results is the easiest answer the non-application of the act would produce inequitable results. Not to apply the act retroactive to June 25,1981, would yield far more problems than would any mechanical application of a calendar determining set of laws. To allow cases decided, but not yet final, either before or during the relatively short interval of McCarty to be subject to the McCarty rule would carve out of the many persons entitled to military pensions a fortunate or unfortunate few who had substantial rights determined by the vagaries of the calendar. It would create a gap of some twenty months in which their future entitlements were or were not to be determined in a manner different from the forty years before or indefinite future after. In re Marriage of Hopkins, 142 Cal.App.3d 350, 359-60, 191 Cal.Rptr. 70, 77 (1983).
As to whether the divorce decree in the instant case operates prospectively so as to allow its reopening under Rule 60(b)(5), one is almost compelled to conclude that the decree is prospective in nature. The majority asserts that the decree “adjudicated all the rights as between the parties as of the date of the judgment,” and, therefore, the judgment is not prospective and *967I.R.C.P. 60(b)(5) may not apply in the instant case. Such argument, however, fails to account for the very nature of the military retirement benefits themselves. They are paid on a monthly basis, contingent upon the survivorship of both the military service person and the divorced spouse. Additionally, Mr. McBride’s military retirement benefit payments began in July 1983, over six months after the divorce decree became final. (See, Rudd v. Rudd, 105 Idaho 112, 666 P.2d 639 (1983). The requirements of Rule 60(b)(5) have been met in the instant case.
I would adopt the reasoning in Flannagan and, pursuant to I.R.C.P. Rule 60(b)(4) and (5), allow for the reopening of Mrs. McBride’s divorce decree to allow for reconsideration of that portion of Mr. McBride’s military retirement benefits accrued during his marriage to Frances McBride as community assets.
Should this dissent inspire a petition for rehearing, and the granting thereof, it would be well if the parties would brief and argue the applicability of an earlier opinion of this Court not heretofore argued which would seem to impact mightily on our disposition of this appeal. That case is Duthie v. Lewiston Gun Club, 104 Idaho 751, 663 P.2d 287 (1983), wherein this Court stated in an opinion authored by Justice Donaldson and concurred in by Justice Bakes:
Even though two actions may arise out of the same operative facts between the same parties this Court has also stated that “[h]owever, sometimes a single trial covering all aspects of the case will be neither desirable nor feasible. Evidence bearing upon one aspect of a case may be unduly prejudicial with respect to another. Or certain matters may be ripe for trial while consideration of others would be premature.” Heaney v. Board of Trustees of Garden Valley School District No. 71, 98 Idaho 900, 903, 575 P.2d 498, 501 (1978).
In this case facts occurred subsequent to the first trial that led to the filing of the second suit, i.e., the cutting and capping of the waterline. Therefore, even though the same facts may be used to determine whether the license was revocable as were used in the first action to determine whether a license existed, because facts occurred subsequent to the first trial that triggered the filing of the second suit, we hold that the issue of revocability was not ripe for trial in the first case, but rather, was premature until the license was actually revoked. Heaney, supra. Therefore, we uphold the trial court’s decision that res judicata does not bar the raising of the issue of revocability in the second suit.
It would seem the same consideration would apply more fully here, especially since we are dealing with proceedings in the same action and not deal with a subsequent lawsuit as was the case in Duthie.
. I do not address the applicability of the other subsections of I.R.C.P. 60(b) in the instant case, since subsections (1), (2), (3) and (6) all mandate that the motion for relief be made within six months of judgment. Mrs. McBride did not meet that timetable.